October 31, 1995 By Jim Warren
By Jim Warren Almost every time legislators or policy makers begin considering policies for access to and/or electronic copies of computerized public records, the same proposals appear:
Fees Covering All Costs Since it is costly to create and maintain public records in modern computerized form, the first proposal is that there should be a fee for access, especially for obtaining copies in that much more useful form - to be searched, sorted, indexed, duplicated, distributed and otherwise utilized much more easily than if the records were in paper form. A common addenda is that fees for such modern access or copies should not be limited merely to the incremental cost of copying, as is often mandated for paper copies of public records, but should be as high as the market will bear, to provide non-tax-based agency revenue since it is optional "enhanced" access. Most agencies, however, should never computerize public records in the first place, unless justified by overall cost savings from greater efficiency and/or staff reductions, or because it enhances the ability to perform mandated agency functions. As in access to streets, policing, public hearings and so on, democratic principles preclude limiting crucial government services to only those who can pay for them. Thus, access should be without cost. And copies should cost no more than their incremental cost of creation, in any of the forms in which the agency routinely creates copies - with no fee charged if the cost of fee collection and accounting exceeds the fee itself. However, an agency should feel free to charge market rates for performing research or otherwise providing access or copies in ways other than the agency does for its own purposes.
Free for Non-profit Use; Fees for Info-peddlers The next proposal is that those who are not profiting from public-records can have free access and at-cost copies, but companies that are distributing information for profit should certainly pay royalties on the public records from which they are profiting. The first groups that look unkindly on such proposals are the news media. Most of them are certainly distributing information for a profit. It is almost certainly indefensible, however, that they could distribute re-keyed public records obtained in free or at-cost paper form, but must obtain agency permission, sign contracts and pay royalties for the same information in computerized form. And it's virtually impossible to delineate which for-profit info-purveyors are news media and which should be charged. For instance, how about the local BBS operator who charges 50 cents per hour and provides a mass of information, of which public records are only a small part? Most don't track who accesses which files, and privacy principles dictate against such surveillance. The same holds true for public and school libraries that may charge a nominal time-based or monthly fee for computer access. Or what about civic nets that may charge $12 per year? What about the throw-away weekly advertisers that serve many communities? Or subscription-based community newsletters? The point is, info-peddlers are not discrete from non-profit users. Their variations form a continuum. Furthermore, if information is available free or at-cost, the only reason customers will pay for-profit companies for access or copies is if they are providing value-added services. And please note that huge corporations and high-profit businesses would have the free or at-cost access if it was for their own, non-sale, internal use, under the not-for-profit criteria. Legislators and agencies simply have to accept the democratic principle: Equal access to public records is fundamental for an informed public and fair participation in the process of our own governance. Jim Warren is serving on the California Secretary of State's Electronic Filings Advisory Panel. The panel is mandated to submit recommendations to the state Legislature by the end of the year on how to implement computerized filing of campaign financial disclosures and lobbyist reports, and provide public access to them. He wrote the original generic plan for low-cost implementation. Jim Warren received the James Madison Freedom of Information Award, the Hugh M. Hefner First Amendment Award and the Electronic Frontier Foundation Pioneer Award in its first year. He founded the Computers, Freedom & Privacy conferences and InfoWorld magazine. Warren lives near Woodside, Calif. E-mail: firstname.lastname@example.org.
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